[Cites 17, Cited by 0]
Bombay High Court
State Of Mah Thr Pso Gondia vs Nishant @ Sonu S/O Kartik Ramteke And 3 ... on 18 March, 2026
Author: Anil L. Pansare
Bench: Anil L. Pansare
2026:BHC-NAG:4411-DB
1 apeal 786-08 & 57-09.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL No. 786/2008
1. Bhartari s/o Kailash Baheliya, : APPELLANTS
Aged about 26 years,
2. Mohammad Imran Sheikh s/o Unus Sheikh,
Aged about 25 years, Occ. - Education,
3. Babu @ Navshad Sheikh s/o Abdul Jaffar
Sheikh,
Aged about 27 years, Occ. - Labour,
All Resident of Gondia, Tah. & Dist. Gondia.
Vs.
The State of Maharashtra, : RESPONDENT
through P.S.O. Gondia City,
Tah. : Gondia, District : Gondia.
Mr. Shashank Manohar & Mr. R.M. Daga, Counsel for the Appellants,
Mr. S.S. Hulke, Addl.P.P. for the Respondent.
WITH
CRIMINAL APPEAL No. 57/2009
State of Maharashtra, : APPELLANT
Through P.S.O., Police Station, Gondia City,
Tq. Gondia, Distt. Gondia
Vs.
1. Nishant @ Sonu s/o Kartik Ramteke, : RESPONDENTS
A/a - 26 years, Occ. - Labour,
(Ori. Accused No.4) Near Shardha Timber,
Single Toli, Gondia.
2 apeal 786-08 & 57-09.odt
2. Mohmmad Ovesh Khan s/o Mohmmad
Rafikh Khan,
A/a - 24 years, Occ. - Labour,
(Ori. Accused No.5) Near Juni Majjid,
Ramnagar, Gondia.
3. Rahul @ Amit S/o Munnalal Mogare,
A/a 24 years, Occ. - Labour
(Ori. Accused No.6) R/o Railway Pool,
Railway Colony, Gondia.
4. Lakhanlal s/o Makhanlal Rahangdale,
A/a 26 yrs. Occ. - Milkman,
(Ori. Accused No. 7), R/o Manohar Colony
Road, Ramnagar, Gondia.
Mr. S.S. Hulke, Addl.P.P. for the Appellant,
Mr. S.O. Ahmed, Counsel for the Respondents.
CORAM : ANIL L. PANSARE AND
NIVEDITA P. MEHTA, JJ.
Date of reserving the judgment : 26.02.2026
Date of pronouncing the judgment : 18.03.2026
JUDGMENT :
(PER : NIVEDITA P. MEHTA, J.)
Both these appeals arise out of the judgment and order dated
24.10.2008 passed by the learned Additional Sessions Judge, Gondia in
Sessions Trial No.33 of 2006. Criminal Appeal No.786 of 2008 is preferred by
original accused Nos.1 to 3, who came to be convicted by the learned trial
Court for the offences punishable under Sections 147, 148 and 302 read with
Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC")
and under Section 4 read with Section 27 of the Arms Act. Criminal Appeal
No.57 of 2009 is preferred by the State challenging the acquittal of original
3 apeal 786-08 & 57-09.odt
accused Nos.4 to 7 recorded by the learned trial Court by the said judgment.
Thus, both the present appeals are being decided by the common judgment.
2. Accused Nos.1 to 3 were convicted by the learned Sessions Judge for
the offences punishable under Sections 147, 148 and 302 read with Section
149 of the IPC and sentenced to suffer imprisonment for life and to pay a fine
of Rs.1,000/- each, in default to suffer rigorous imprisonment for three
months. The said accused were also convicted for the offence punishable
under Section 4 read with Section 27 of the Arms Act and were sentenced to
suffer rigorous imprisonment for three years and to pay a fine of Rs.500/-
each, in default to suffer rigorous imprisonment for one month. The learned
trial Judge, however, acquitted accused Nos.4 to 7 of the aforesaid offences.
3. The prosecution case, in brief, is that PW 1-Indrapalsingh Thakur
was running a pan shop at Pal Chowk, Gondia. On 18.02.2006 at about 1.30
p.m., the deceased Imran @ Bablu with one Kadir was present at Nawab Pan
Shop situated nearby. At that time PW-2 Rahaman, the elder brother of the
deceased, was taking pan at Durga Pan Centre. It is the case of the
prosecution that accused Nos.1 to 7, out of which three of them arrived at the
spot on a Hero Honda motorcycle bearing registration No.MH-35/B-2021
while the remaining came on bicycles. They started talking with the deceased
and thereafter took him near the wall of the shop of one Chandresh Cot
(Furniture) Shop. According to the prosecution, appellant No.1 Bhartari was
armed with a knife, appellant No.2 Mohd. Imran was holding an iron pipe
4 apeal 786-08 & 57-09.odt
and appellant No.3 Babu @ Naushad was armed with a gupti, while the other
accused were also present at the spot. Suddenly appellant No.1, appellant
No.3 and the other accused persons, who were armed with weapons, started
assaulting the deceased. On noticing the assault, PW 2-Rahaman rushed
towards the accused persons and threw a bicycle towards appellant Nos.2
and 3 in an attempt to intervene. Thereupon appellant No.1 allegedly rushed
towards PW 2 with a knife. In the meantime, the deceased collapsed on the
spot, but the accused persons continued to inflict blows upon him and
thereafter fled away from the place of occurrence. When PW 2 went near the
deceased, he found that he had succumbed to the injuries. The prosecution
also brought on record that two days prior to the incident, there was quarrel
between the deceased and one Soheb and Sayyad, friends of the deceased.
4. Thereafter, PW 2 went to the Gondia City Police Station and lodged
the report (Exh.49). On the basis of the oral report, Crime No. 40/2006 came
to be registered at City Police Station, Gondia for the offences punishable
under Sections 147, 148, and 302 r/w 149 of IPC and Section 4 r/w 27 of the
Arms Act. In the meantime, a telephonic message regarding the incident had
also been received at the police station at about 2.15 p.m., upon which PW
10-P.I. Sunil Jaiswal proceeded to Pal Chowk and found the dead body lying
near the road. He prepared the spot panchnama (Exh.54) and seized simple
as well as blood-stained soil under panchnama (Exh.56). After preparing the
inquest panchnama (Exh.55), the dead body was sent for post-mortem
examination.
5 apeal 786-08 & 57-09.odt
5. During investigation, the clothes of the deceased were seized under
panchnama (Exh.95). Later, appellant Nos.1 and 2 had come to the police
station and surrendered themselves, and the weapons allegedly used in the
incident were seized. Accused Nos.1 to 6 were arrested. Original accused
No.7 Lakhanlal Rahangdale was arrested on 20.02.2006 and his blood
sample and clothes were also seized. The weapons allegedly used in the
incident were seized and sent to the Medical Officer for opinion (Exh.102).
The muddemal articles were forwarded to the Chemical Analyser and reports
were received (Exhs.104 to 106). After recording the statements of witnesses
and completing the investigation, charge-sheet came to be filed before the
learned Judicial Magistrate First Class, Gondia who committed the case to the
court of Sessions.
6. The learned trial Court framed Charge (Exhibit No.29) against the
original accused No.1 to 7 for the offences punishable under Sections 147,
148, 302 r/w Section 149 of the IPC and Section 4 r/w 27 of the Arms Act.
The accused persons pleaded not guilty and claimed to be tried. In support of
its case, the prosecution examined ten witnesses including PW 1-
Indrapalsingh Thakur at Exh. 47, PW 2-Rahaman Pathan (brother of
deceased) at Exh. 48, PW 3-Mohd. Sarfaraj Rajak at Exh.51, PW 4-Sayyad
Mohd. Ali at Exh. 52, PW 5-Naresh Sahu at Exh. 53, PW 6-Sayyad Parwej at
Exh. 79, PW 7-Sayyad Jafar at Exh. 90, PW 8-Rajkumar Gaidhane at Exh. 93
(pancha witness), PW 9-Dr. Lalit Katre, Medical Officer at Exh.97 and PW 10
(Investigating Officer) Sunil Jaiswal at Exh. 101. After completion of the
6 apeal 786-08 & 57-09.odt
prosecution evidence, the statements of the accused persons were recorded
under Section 313 of the Code of Criminal Procedure. The accused persons
denied the allegations and claimed false implication.
7. The learned trial Judge, upon appreciation of the oral and
documentary evidence on record, came to the conclusion that the death of
deceased Imran @ Bablu was homicidal in nature. The learned trial Court
found that the evidence of the eye-witnesses, particularly PW 1-
Indrapalsingh, PW 2-Rahaman Pathan, PW 3-Mohammad Sarfaraj and PW 4-
Sayyad Mohammad Ali, was sufficient to establish that appellant Nos.1 to 3
had participated in the assault on the deceased. The learned trial Court also
took into consideration the medical evidence as well as the seizure of
weapons and clothes during the course of investigation. On that basis, the
Court held appellant Nos.1 to 3 guilty of the offences punishable under
Sections 147, 148 and 302 read with Section 149 of the IPC and under
Section 4 read with Section 27 of the Arms Act. However, the learned trial
Court found that the evidence against accused Nos.4 to 7 was not sufficient
and consequently acquitted them of the said offences. Being aggrieved by the
said judgment, appellant Nos.1 to 3 have preferred Criminal Appeal No. 786
of 2008 whereas the State has preferred Criminal Appeal No. 57 of 2009
challenging the acquittal of accused Nos.4 to 7.
8. We have heard the learned Counsel Mr. Shashank Manohar
appearing for the appellants in Criminal Appeal No. 786/2008, the learned
7 apeal 786-08 & 57-09.odt
Counsel Mr. S.O. Ahmed appearing for the respondents in Criminal Appeal
No. 57/2009 and the learned Additional Public Prosecutor Mr. S.S. Hulke
appearing for the State.
9. The learned Counsel appearing for the appellants/original accused
Nos. 1 to 3 submitted that the impugned judgment of conviction suffers from
serious infirmities in appreciation of the evidence and is liable to be set aside.
It is contended that the entire prosecution case rests upon the testimonies of
PW 1, PW 2, PW 3 and PW 4 who are projected as eye-witnesses. According
to the learned Counsel, their evidence is riddled with material omissions,
improvements and contradictions, as admitted by PW 10, the Investigating
Officer. Though the incident allegedly occurred at a busy chowk where a
large crowd had gathered, no independent witness from the locality has been
examined. PW 1, PW 3 and PW 4 admittedly did not disclose the incident to
anyone until their statements were recorded and did not approach the police
at the earliest opportunity, which renders their presence doubtful. It is further
argued that the FIR itself appears to be ante-timed. The incident allegedly
occurred between 1.30 p.m. and 2.00 p.m., whereas the FIR is shown to have
been recorded at 2.15 p.m. despite the distance of the police station being
about two kilometres. At the same time the spot panchnama commenced at
2.25 p.m. and the Investigating Officer claims to have received telephonic
information at 2.05 p.m. According to the accused Nos. 1 to 3, these
circumstances create doubt regarding the prosecution version. It is also
pointed out that though PW 2 claimed to have thrown a bicycle at the
8 apeal 786-08 & 57-09.odt
accused persons, no such bicycle was seized from the spot and the spot
panchnama does not reflect the presence of pan stalls near which the
witnesses claim to have been standing.
10. The learned Counsel further submitted that the investigation suffers
from serious defects. Panch witnesses PW 5 and PW 7 admitted that when
they reached the spot the panchnamas had already been written and they
were merely asked to sign them. Similarly, PW 6 and PW 8 admitted that the
seized articles were already kept on the table when they were called to the
police station. Multiple seizure panchnamas relating to the clothes of
different accused persons bear identical timings, casting doubt on their
genuineness. The Assistant Sub-Inspector who allegedly recorded the FIR and
effected seizures has not been examined and no arrest panchnamas are on
record. It is also pointed out that there is material suggesting that accused
Nos.1 and 2 had themselves gone to the police station to lodge a complaint
against the brothers of the deceased.
11. It is further contended that the medical evidence does not support
the ocular version. PW 9 found as many as 19 incised wounds on the body of
the deceased and opined that they were caused by sharp-edged weapons.
However, according to the prosecution an iron rod was also used in the
assault. The doctor admitted that an iron rod cannot cause incised wounds
and that no injury consistent with a blunt weapon was found. He also stated
that no blood stains were noticed on the weapons when examined by him
9 apeal 786-08 & 57-09.odt
though the seizure panchnamas and the Chemical Analyser's report refer to
blood stains. These circumstances, according to the accused Nos. 1 to 3,
create serious doubt regarding the alleged use of weapons.
12. On the aspect of motive, it is submitted that the alleged quarrel
occurred two days prior to the incident did not involve the deceased, who
was in jail at that time, and PW 2 admitted that there was no dispute
between accused No.2 and the deceased. On the contrary, accused Nos.1 and
2 had lodged a report against the brothers of the deceased. It is lastly
contended that the learned trial Court itself recorded contradictory findings
inasmuch as it observed that PW 1 had not witnessed the incident but
nevertheless relied upon his testimony, and despite noticing inconsistencies in
the evidence of PW 3 accepted his version. On these grounds, it is submitted
that the prosecution has failed to prove the case beyond reasonable doubt
and the appellants-accused Nos. 1 to 3 are entitled to benefit of doubt.
13. The learned Counsel for the accused Nos. 1 to 3 has placed reliance
on certain judgments in support of the above contentions, which shall be
referred to at the appropriate stage while discussing the evidence on record.
14. Per contra, the learned Additional Public Prosecutor supported the
impugned judgment and order and submitted that the learned trial Court has
properly appreciated the evidence on record and rightly convicted the
accused Nos. 1 to 3. It is contended that the homicidal death of the deceased
10 apeal 786-08 & 57-09.odt
stands conclusively established from the medical evidence of PW 9, who
opined that the death was caused due to haemorrhagic shock resulting from
multiple stab injuries. The nature, number and situs of injuries clearly
indicate that the assault was intentional and brutal.
15. The learned Additional Public Prosecutor submitted that the
evidence of PW 1 to PW 4, who are natural witnesses present at or near the
spot, is consistent on material particulars regarding the presence of the
accused persons, the weapons carried by them and the assault on the
deceased. Merely because there are certain omissions or discrepancies in their
police statements, their substantive evidence before the Court cannot be
discarded, particularly when such omissions do not go to the root of the
matter. It is further argued that minor inconsistencies are bound to occur in
truthful testimony and rather lend assurance that the witnesses are not
tutored. With regard to the conduct of PW 3 and PW 4, it is submitted that
different persons may react differently to a shocking incident and their failure
to immediately disclose the incident does not by itself render their testimony
unreliable.
16. On the aspect of non-examination of independent witnesses, the
learned Additional Public Prosecutor submitted that it is the quality and not
the quantity of evidence which is material. Merely because shopkeepers or
other bystanders were not examined, the otherwise cogent evidence of eye-
witnesses cannot be rejected. It is further contended that the evidence of
11 apeal 786-08 & 57-09.odt
related witnesses cannot be discarded solely on the ground of relationship if
it inspires confidence.
17. The learned Additional Public Prosecutor further submitted that the
recovery of weapons and clothes at the instance of the accused persons has
been duly proved through the evidence of panch witnesses and the
Investigating Officer, and the Chemical Analyser's report showing the
presence of blood stains on the seized articles lends corroboration to the
prosecution case. According to the prosecution, even assuming that no
specific injury attributable to an iron rod is found, that circumstance alone
would not falsify the entire prosecution version when the fatal injuries are
proved to have been caused by sharp weapons carried by the accused.
18. Insofar as the appeal preferred by the State against the acquittal of
accused Nos.4 to 7 is concerned, the learned Additional Public Prosecutor
submitted that the learned trial Court erred in discarding the evidence of the
eye-witnesses to that extent. According to the prosecution, the evidence of
PW 1 to PW 4 consistently shows that accused Nos.4 to 7 were also present at
the spot and had participated in the assault as members of the unlawful
assembly. It is submitted that once the presence of these accused persons is
established and the common object of the unlawful assembly is proved, their
liability would arise with the aid of Section 149 of the IPC. The learned
Additional Public Prosecutor, therefore, submitted that the trial Court ought
not to have acquitted accused Nos.4 to 7.
12 apeal 786-08 & 57-09.odt
19. It is lastly submitted that the evidence on record clearly establishes
that the accused formed an unlawful assembly and, in prosecution of their
common object, committed the murder of the deceased. The learned
Additional Public Prosecutor, therefore, prayed that Criminal Appeal No.786
of 2008 be dismissed and the conviction of appellant Nos.1 to 3 be affirmed,
and Criminal Appeal No.57 of 2009 filed by the State be allowed by setting
aside the acquittal of accused Nos.4 to 7 and convict them for the offences
charged.
20. We have heard the learned Counsels and the learned Additional
Public Prosecutor for the respective parties at length and gone through the
evidence on record and the impugned order. We will refer the same to the
extent necessary to decide the following points that arise for our
consideration -
Points for consideration :
Sr.No. Points Findings
(i) Whether the prosecution has proved that In the Affirmative.
the death of Imran @ Bablu was
homicidal?
(ii) Whether the prosecution has proved that In the Negative.
the accused persons had formed an
unlawful assembly and in prosecution of
the common object committed the murder
of the deceased?
(iii) Whether interference is called for in the In the Affirmative.
impugned judgment?
(iv) What order? As per Final Order.
13 apeal 786-08 & 57-09.odt
REASONS
As to Point No.(i) :
21. At the outset, it is not in dispute that the deceased met a homicidal
death. The prosecution has relied upon the medical evidence of PW 9-Dr.
Lalit Katre, who conducted the post-mortem examination on the dead body of
deceased Imran @ Bablu. The said witness noticed as many as nineteen
incised wounds on the person of the deceased along with four internal
injuries including fractures of ribs and injuries to vital organs. On external
examination, as noted in Column No. 17 of the post-mortem report, he found
the following ante-mortem injuries:
1) Incised wound of 4cm x l cm x l cm
2) Incised wound of 3 x 1 x 1cm
3) Incised wound of 3 x 1 x 3cm
4) Incised wound of 3 x 1 x 3cm
5) Incised wound of 2 x 1 x 4cm
6) Incised wound of 3 x 1 x 4cm
7) Incised wound of 3 x 1 x 4cm
8) Incised wound of 5 x 1 x 6cm
9) Incised wound of 6 x 1 x 8cm
10) Incised wound of 3 x 1 x 10cm
11) Incised wound of 3 x 1 x 5cm
12) Incised wound of 8 x 1 x 8cm
13) Incised wound of 3 x 2 x 7cm
14) Incised wound of 4 x 1 x 6cm
15) Incised wound of 3 x 1 x 6cm
16) Incised wound of 3 x 1 x 8cm
17) Incised wound of 3 x 1 x lcm
18) Incised wound of 3 x 1 x lcm
19) Incised wound of 3 x 1 x lcm
14 apeal 786-08 & 57-09.odt
While examining the internal injuries he noted the following
observation :
1) Diffused subcutaneous blood on right frontal and left
parietal region, there are fracture of right 2nd and left 5th and
6th ribs on the anterior axillary line with left 7th and 8th ribs in
left parietal region.
2) There was tear of the pleura under fracture site.
3) Deep incised wound on right lung about 5 cm deep on
anterior surface of right lower lob, left lung congested deep
incised wound on parietal region on left lower lob.
4) The pericardium shows tear about 2cm long on lower
anterior lateral portion of pericardium. Thorax cavity was filled
with blood.
22. According to the Medical Officer, the cause of death was cardio-
respiratory failure due to haemorrhagic shock resulting from multiple stab
wounds. The injuries were ante-mortem in nature and were sufficient in the
ordinary course of nature to cause death. The nature and depth of the
injuries as well as multiple stabbing excludes any possibility of accidental or
suicidal death. The defence has not disputed the homicidal nature of death.
No alternative theory has been suggested to explain the injuries.
23. The medical evidence thus clearly establishes that the death of
Imran @ Bablu was homicidal.
Accordingly, Point No.(i) is answered in the affirmative.
As to Point Nos. (ii) & (iii) -
24. However, the crucial question which arises for consideration is
whether the prosecution has proved beyond reasonable doubt that the
15 apeal 786-08 & 57-09.odt
accused persons before the Court were the perpetrators of the assault and
that they had formed an unlawful assembly and committed the murder in
prosecution of their common object.
25. The first circumstance which creates doubt about the prosecution
case relates to the conduct of the alleged eye-witnesses. PW-1, who claims to
have witnessed the assault from his pan shop, admitted in cross-examination
that when the police arrived at the spot and were preparing the spot
panchnama, he did not inform them that he had witnessed the incident and
did not insist upon recording of his statement at that time. Similarly, PW-3
and PW-4 admitted that they did not disclose the incident to anyone on the
same day and that their statements came to be recorded only on the next day.
The incident is alleged to have occurred in broad daylight at a busy chowk. In
such circumstances, the silence of these witnesses and their failure to disclose
the incident at the earliest opportunity appears unnatural and creates doubt
regarding their presence at the spot.
26. The learned Counsel for the appellants has relied upon the
judgments in Sonia Bahera v. State of Orissa, (1983) 2 SCC 327; Alil Mollah
and Anr. v. State of West Bengal, (1996) 5 SCC 369; and State of Orissa v.
Mr. Brahmananda Nanda, (1976) 4 SCC 288 to contend that unexplained
silence or delayed disclosure by an alleged eye-witness seriously affects the
credibility of such testimony. In Sonia Bahera (supra), the Hon'ble Supreme
Court observed that when eye-witnesses do not disclose the occurrence to
16 apeal 786-08 & 57-09.odt
anyone on the date of the incident, their conduct renders their version
doubtful. A similar view has been taken in Alil Mollah (supra) and Mr.
Brahmananda Nanda (supra), wherein it has been held that unexplained
delay in disclosing the incident or failure to promptly inform the authorities
materially affects the reliability of the witness.
27. The Hon'ble Supreme Court has consistently held that while there
cannot be uniformity in human reaction, a Court has to keep in mind that if
the conduct of the witness is so unnatural and not in accord with acceptable
human behaviour, then his testimony becomes questionable and can likely be
discarded. The same has been discussed in Lahu Kamlakar Patil and Anr. v.
State of Maharashtra, (2013) 6 SCC 417 as reproduced below-
"26. From the aforesaid pronouncements, it is vivid that
witnesses to certain crimes may run away from the scene and
may also leave the place due to fear and if there is any delay in
their examination, the testimony should not be discarded. That
apart, a court has to keep in mind that different witnesses react
differently under different situations. Some witnesses get a
shock, some become perplexed, some start wailing and some run
away from the scene and yet some who have the courage and
conviction come forward either to lodge an FIR or get
themselves examined immediately. Thus, it differs from
individuals to individuals. There cannot be uniformity in human
reaction. While the said principle has to be kept in mind, it is
also to be borne in mind that if the conduct of the witness is so
unnatural and is not in accord with acceptable human behaviour
allowing variations, then his testimony becomes questionable
and is likely to be discarded."
28. In the present case, the conduct of PW-1 in not informing the
police about having witnessed the incident when they arrived at the spot, as
well as the silence of PW-3 and PW-4 till the next day, assumes significance.
17 apeal 786-08 & 57-09.odt
Such conduct appears wholly unnatural for persons who claim to have
witnessed a serious assault in a public place. In the absence of any
satisfactory explanation for this silence, the testimony of these witnesses
becomes doubtful and it would not be safe to place implicit reliance upon
their evidence.
29. Another circumstance which casts doubt on the prosecution
version relates to the timing of the First Information Report and the
surrounding events. According to the prosecution, the incident occurred
between 1.30 p.m. and 2.00 p.m. The FIR is shown to have been recorded at
2.15 p.m. PW-2 admitted that the distance between the spot and the police
station is about 2 kilometres and that it takes about five minutes to reach the
police station and about five to seven minutes for making the report. At the
same time, the spot panchnama is shown to have commenced at about 2.25
p.m. and PW-2 is stated to have shown the spot to the police. These timings,
when considered along with the evidence of the Investigating Officer that he
had received telephonic information earlier, create uncertainty regarding the
sequence of events. If the FIR had indeed been lodged promptly in the
manner suggested by the prosecution, it would ordinarily have preceded the
commencement of investigative steps at the spot. The overlapping timings,
however, suggest that the investigation may have commenced even before
the report was formally recorded. Even after considering the admitted time
required for lodging the report, the sequence of events appear improbable.
18 apeal 786-08 & 57-09.odt
These overlapping timings cast a shadow on the authenticity of the FIR and
create a reasonable possibility of it being anti-timed.
30. Further, PW-2 has stated that he threw his bicycle at the accused
persons while attempting to save his brother and that the bicycle remained
lying at the spot. However, the Investigating Officer admitted that no such
bicycle was seized from the place of occurrence. When the prosecution relies
upon such an act to demonstrate the presence of PW-2 at the scene, the non-
seizure of the bicycle assumes significance and weakens the prosecution
version. These circumstances cumulatively create doubt regarding the
reliability of the ocular testimony of PW-1 to PW-4 and make it unsafe to rely
upon their evidence without independent corroboration.
31. Apart from the doubts arising from the ocular testimony, the
evidence relating to investigation and recovery of articles also does not
appear to inspire confidence. The prosecution has relied upon several seizure
and panchnamas to connect the appellants with the crime. However, the
evidence of the panch witnesses raises serious doubts about the manner in
which these documents were prepared.
32. PW-5 and PW-7, who acted as panch witnesses for the spot and
inquest panchnamas, admitted during cross-examination that when they
reached the spot, the police had already commenced writing the panchnamas
and they were merely asked to sign the documents. Similarly, PW-6 and PW-
19 apeal 786-08 & 57-09.odt
8 admitted that when they were called to the police station, the weapons and
clothes allegedly seized from the appellants were already kept on the table.
Such evidence indicates that the panch witnesses had no occasion to verify
the actual seizure and were only asked to sign the documents prepared by the
police. Such admission strike at the root of the prosecution case. The learned
Counsel for the appellants has relied upon the case of Jayantibhai Chaturbhai
Patel v. State of Gujarat, 2025 SCC Online SC 2822 to support their
contention.
33. The Hon'ble Supreme Court has consistently held that where
panch witnesses admit that their signatures were obtained on prepared
documents or that they had not actually witnessed the seizure, the
evidentiary value of such panchnamas becomes doubtful and cannot be safely
relied upon. (Rajesh and another v. State of Madhya Pradesh, (2023) 15 SCC
521; Ramanand @ Nandlal Bharti v. State of Uttar Pradesh, (2022) 4 SCC
497; Pradeep Narayan Madgaonkar v. State of Maharashtra, (1995) 4 SCC
255). This Court has observed that there was significant inconsistency in the
manner in which the investigation was conducted with regard to the seizure
and identification of material objects. The evidence on record indicates that
the clothes of the accused persons and the weapons were kept together on a
table by the police without proper identification or marking to indicate which
article belonged to which accused. This aspect assumes importance
particularly in light of the admission made by a panch witness, PW6 during
his cross-examination, wherein he stated that he had to ask the police to
20 apeal 786-08 & 57-09.odt
clarify as to which clothes belonged to which accused persons. Such an
admission reflects a lack of proper procedure in the handling and
identification of seized articles. When this lapse is considered along with the
other inconsistencies appearing in the prosecution evidence, it raises serious
doubts regarding the manner in which the investigation was carried out and
diminishes the reliability of the prosecution case.
34. The evidence further shows that multiple seizure panchnamas
relating to the clothes of different accused persons bear identical timings.
This circumstance creates doubt regarding the genuineness of the documents
and suggests that the memoranda and seizures may have been prepared
together at the police station rather than at different times as claimed. The
learned Counsel for the appellants has relied on the case of The State of
Maharashtra v. Sangita Gulab Chaure, 2007 Supreme (Bom) 917, wherein it
has been observed that where several panchnamas show identical timings,
such circumstance casts serious doubt on the authenticity of the alleged
recoveries.
35. The prosecution has also failed to establish the safe custody and
sealing of the seized articles. The evidence does not clearly show with whom
the seized weapons and clothes remained after seizure and whether the seals
remained intact till the articles were sent for chemical analysis. The Hon'ble
Supreme Court in Valsala v. State of Kerala, 1993 Supp (3) SCC 665 and
State of Rajasthan v. Daulat Ram, (1980) 3 SCC 303 has emphasized that
21 apeal 786-08 & 57-09.odt
where the prosecution fails to establish the chain of custody and integrity of
the seized articles, reliance on such evidence becomes unsafe.
36. In view of these deficiencies, the recovery evidence relied upon by
the prosecution cannot be said to have been proved in a reliable manner. The
manner in which the seizures were effected and proved creates a serious
doubt about their genuineness and, therefore, we are of the opinion that the
alleged recoveries do not provide trustworthy corroboration to the
prosecution case.
37. The medical evidence on record also assumes significance while
evaluating the prosecution case. PW 9-Dr. Lalit Katre, who conducted the
post-mortem examination, found as many as nineteen incised wounds on
different parts of the body of the deceased. The doctor has categorically
stated that all these injuries were caused by sharp-edged weapons. No blunt
force injury was detected. The prosecution, however, alleges that apart from
knives, an iron rod was also used during the assault.
38. During cross-examination, PW-9 admitted that an iron rod cannot
cause incised wounds. He further admitted that all the injuries described in
the post-mortem report were clean-cut incised injuries and that no injury
consistent with a blunt weapon was found on the body of the deceased. The
witnesses, however, have consistently stated that apart from knives, an iron
22 apeal 786-08 & 57-09.odt
rod was used in the assault. This inconsistency between the ocular version
and the medical evidence assumes importance.
39. It is a well-settled principle of criminal jurisprudence that when
the ocular version is wholly inconsistent with the medical evidence and such
inconsistency remains unexplained, it strikes at the root of the prosecution
case. The learned Counsel for the appellants has relied on the cases of Amar
Singh and others v. State of Punjab, ( 1987) 1 SCC 679 and Lakshmi Singh
and others v. State of Bihar , (1976) 4 SCC 394 to support his contention. In
Amar Singh (supra), the Hon'ble Supreme Court observed that where the
medical evidence completely contradicts the prosecution version regarding
the manner of assault, the credibility of the ocular testimony becomes
doubtful. A similar principle has been reiterated in Lakshmi Singh (supra),
wherein it has been held that where the medical evidence is inconsistent with
the alleged manner of assault, reliance upon such ocular testimony becomes
unsafe.
40. In the present case, the prosecution witnesses have consistently
asserted that an iron rod was used during the assault, yet the medical
evidence does not reveal any injury consistent with a blow from an iron rod.
The prosecution has not offered any satisfactory explanation for this
inconsistency. This contradiction between the medical evidence and the
ocular version further weakens the prosecution case and creates doubt
regarding the manner in which the incident is alleged to have occurred.
23 apeal 786-08 & 57-09.odt
41. The prosecution has also attempted to rely upon the circumstance
that the accused had voluntarily surrendered at the police station along with
the weapons allegedly used in the offence. However, this version is not
satisfactorily established by the evidence on record. The Investigating Officer
(PW 10) has stated that the weapons were seized by Assistant Sub-Inspector
Naresh Rahangdale before whom the accused are said to have surrendered.
Significantly, the said officer has not been examined by the prosecution. In
the absence of the testimony of the officer who allegedly recorded the
surrender and effected the seizure, the prosecution version regarding
surrender with weapons remains uncorroborated and cannot be safely
accepted. On the contrary, PW 10 himself admitted during cross-examination
that accused Nos.1 and 2 had approached the police station to lodge a
complaint against the brothers of the deceased alleging threats extended by
them, which complaint was recorded. This circumstance assumes significance
while appreciating the prosecution case and creates doubt regarding the
alleged surrender and recovery of weapons.
42. In view of the serious doubts which arise regarding the credibility
of the eye-witnesses and the manner in which the investigation was
conducted, the prosecution version regarding the participation of the accused
persons in the assault itself becomes uncertain. The entire case of the
prosecution that the accused persons had formed an unlawful assembly and
committed the offence in prosecution of their common object rests primarily
upon the testimony of PW-1 to PW-4. Once the presence and participation of
24 apeal 786-08 & 57-09.odt
these accused persons in the assault becomes doubtful, the very basis for
invoking Section 149 of the Indian Penal Code disappears. The prosecution
has not led any independent or reliable evidence to establish that the accused
persons had assembled with a pre-arranged plan or shared a common object
to commit the murder of the deceased. In these circumstances, it would not
be safe to hold that the accused had formed an unlawful assembly or that the
offence was committed in prosecution of any such common object.
43. The same evidence has also been relied upon by the prosecution to
attribute participation to accused Nos.4 to 7. However, as already discussed,
the testimonies of the alleged eye-witnesses do not inspire confidence and
suffers from serious infirmities. Once the presence and participation of the
accused persons itself becomes doubtful, the prosecution case against the
remaining accused becomes even more fragile. In the absence of reliable and
cogent evidence showing their active participation in the assault or their
sharing of any common object, it would not be safe to record a finding of
guilt against them.
44. The learned trial Court, upon appreciation of the evidence,
extended the benefit of doubt to accused Nos.4 to 7 and recorded an order of
acquittal. It is well settled that an appellate court would be slow in
interfering with an order of acquittal unless the view taken by the trial Court
is shown to be perverse or wholly unreasonable. In the present case, the view
taken by the trial Court is a plausible and reasonable view based on the
25 apeal 786-08 & 57-09.odt
evidence on record. We, therefore, find no reason to disturb the acquittal of
accused Nos. 4 to 7 recorded by the trial Court.
45. The prosecution has also attempted to rely upon motive by
referring to an alleged quarrel that had taken place two days prior to the
incident. However, the evidence on record does not satisfactorily establish
this aspect. PW 2 himself admitted that the alleged quarrel was between
accused No.2 and a friend of the deceased and that at that time the deceased
was in jail. He further admitted that there was no dispute between accused
No.2 and the deceased. On the contrary, the evidence of the Investigating
Officer indicates that accused Nos.1 and 2 had lodged a report apprehending
threat from the associates of the deceased. These circumstances weaken the
prosecution theory of motive and also raise the possibility of false
implication.
46. The reasoning adopted by the learned trial Court also does not
appear to be free from inconsistency. The learned trial Court itself observed
that PW-1 had not actually witnessed the incident. Despite recording such
observation, the learned trial Court nevertheless relied upon his testimony to
attribute the weapon to accused No.1. Similarly, though the trial Court
noticed inconsistencies in the evidence of PW-3, it proceeded to rely upon his
version while recording conviction. Such contradictory appreciation of
evidence indicates that the learned trial Court did not properly evaluate the
26 apeal 786-08 & 57-09.odt
credibility of the prosecution witnesses and accepted their testimony without
adequate scrutiny.
47. When the entire evidence on record is considered cumulatively,
several circumstances emerge which create reasonable doubt regarding the
prosecution case. The credibility of the alleged eye-witnesses is affected by
material omissions and unnatural conduct. The surrounding circumstances
relating to the timing of the FIR and non-seizure of the bicycle create further
uncertainty about the prosecution version. The investigation suffers from
serious deficiencies, particularly in relation to the manner of preparation of
panchnamas and the seizure of articles. The medical evidence also does not
fully support the ocular version regarding the use of an iron rod. The alleged
motive is not established. These circumstances, when taken together, make
the prosecution case doubtful.
48. In criminal jurisprudence, the prosecution is required to establish
the guilt of the accused beyond reasonable doubt. Suspicion, however strong,
cannot take the place of proof. In the present case, the evidence on record
suffers from several material infirmities and does not inspire confidence
required to sustain a conviction for a serious offence like murder. The
prosecution has, therefore, failed to establish beyond reasonable doubt that
the accused formed an unlawful assembly and committed the murder of
deceased Imran @ Bablu in furtherance of the alleged common object.
27 apeal 786-08 & 57-09.odt
49. In view of the discussion made hereinabove, we find that though
the homicidal death of Imran @ Bablu stands established, the prosecution has
failed to prove beyond reasonable doubt that the accused persons formed an
unlawful assembly and committed the murder of the deceased in prosecution
of their common object. The evidence of the alleged eye-witnesses suffers
from material omissions and improvements, their conduct appears unnatural,
and the surrounding circumstances relating to the timing of the FIR and non-
seizure of the bicycle create further doubt regarding the prosecution version.
The investigation also suffers from serious deficiencies in the matter of
seizure and preparation of panchnamas, and the medical evidence does not
fully support the ocular testimony regarding the manner of assault. The
alleged motive has also not been satisfactorily established. The cumulative
effect of these circumstances creates a reasonable doubt in the prosecution
case. The appellants/accused Nos. 1 to 3 are, therefore, entitled to the benefit
of doubt and the conviction recorded by the learned trial Court cannot be
sustained. Accordingly, Point No. (ii) is answered in the negative and Point
No. (iii) is answered in the affirmative. Hence, we proceed to pass the
following order:
ORDER
(i) Criminal Appeal No. 786 of 2008, preferred by the appellants -
original accused Nos.1 to 3, is allowed.
(ii) The judgment and order of conviction and sentence dated 24.10.2008
passed by the learned Additional Sessions Judge, Gondia in Sessions
28 apeal 786-08 & 57-09.odt
Trial No. 33 of 2006, insofar as it relates to the appellants - original
accused Nos.1 to 3, is hereby quashed and set aside.
(iii) The appellants-original accused Nos.1 to 3 are acquitted of the
offences punishable under Sections 147, 148 and 302 read with
Section 149 of the Indian Penal Code and Section 4 read with Section
27 of the Arms Act.
(iv) Bail bonds of the appellants - accused Nos.1 to 3 shall stand cancelled.
(v) Fine, if any, paid by the appellants-accused Nos. 1 to 3 be refunded to
them.
(vi) Criminal Appeal No. 57 of 2009, preferred by the State challenging the
acquittal of the respondents i.e. original accused Nos.4 to 7, is
dismissed.
(NIVEDITA P. MEHTA, J.) (ANIL L. PANSARE, J.)
sknair
Signed by: Mr. S.K. NAIR
Designation: PS To Honourable Judge
Date: 18/03/2026 15:26:38
